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NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
R. A. V. v. CITY OF ST. PAUL, MINNESOTA
certiorari to the supreme court of minnesota
No. 90-7675. Argued December 4, 1991-Decided June 22, 1992
After allegedly burning a cross on a black family's lawn, petitioner
R. A. V. was charged under, inter alia, the St. Paul, Minnesota, Bias-
Motivated Crime Ordinance, which prohibits the display of a symbol
which one knows or has reason to know ``arouses anger, alarm or
resentment in others on the basis of race, color, creed, religion or
gender.'' The trial court dismissed this charge on the ground that
the ordinance was substantially overbroad and impermissibly content-
based, but the State Supreme Court reversed. It rejected the over-
breadth claim because the phrase ``arouses anger, alarm or resent-
ment in others'' had been construed in earlier state cases to limit the
ordinance's reach to ``fighting words'' within the meaning of this
Court's decision in Chaplinsky v. New Hampshire, 315 U.S. 568,
572, a category of expression unprotected by the First Amendment.
The court also concluded that the ordinance was not impermissibly
content-based because it was narrowly tailored to serve a compelling
governmental interest in protecting the community against bias-
motivated threats to public safety and order.
Held:The ordinance is facially invalid under the First Amendment.
Pp.2-18.
(a)This Court is bound by the state court's construction of the
ordinance as reaching only expressions constituting ``fighting words.''
However, R. A. V.'s request that the scope of the Chaplinsky formula-
tion be modified, thereby invalidating the ordinance as substantially
overbroad, need not be reached, since the ordinance unconstitutional-
ly prohibits speech on the basis of the subjects the speech addresses.
Pp.2-3.
(b)A few limited categories of speech, such as obscenity, defama-
tion, and fighting words, may be regulated because of their constitu-
tionally proscribable content. However, these categories are not
entirely invisible to the Constitution, and government may not
regulate them based on hostility, or favoritism, towards a nonpro-
scribable message they contain. Thus the regulation of ``fighting
words'' may not be based on nonproscribable content. It may,
however, be underinclusive, addressing some offensive instances and
leaving other, equally offensive, ones alone, so long as the selective
proscription is not based on content, or there is no realistic possibility
that regulation of ideas is afoot. Pp.4-12.
(c)The ordinance, even as narrowly construed by the State Su-
preme Court, is facially unconstitutional because it imposes special
prohibitions on those speakers who express views on the disfavored
subjects of ``race, color, creed, religion or gender.'' At the same time,
it permits displays containing abusive invective if they are not
addressed to those topics. Moreover, in its practical operation the
ordinance goes beyond mere content, to actual viewpoint, discrimina-
tion. Displays containing ``fighting words'' that do not invoke the
disfavored subjects would seemingly be useable ad libitum by those
arguing in favor of racial, color, etc. tolerance and equality, but not
by their opponents. St. Paul's desire to communicate to minority
groups that it does not condone the ``group hatred'' of bias-motivated
speech does not justify selectively silencing speech on the basis of its
content. Pp.12-15.
(d)The content-based discrimination reflected in the ordinance
does not rest upon the very reasons why the particular class of
speech at issue is proscribable, it is not aimed only at the ``secondary
effects'' of speech within the meaning of Renton v. Playtime Theatres,
Inc., 475 U.S. 41, and it is not for any other reason the sort that
does not threaten censorship of ideas. In addition, the ordinance's
content discrimination is not justified on the ground that the ordi-
nance is narrowly tailored to serve a compelling state interest in
ensuring the basic human rights of groups historically discriminated
against, since an ordinance not limited to the favored topics would
have precisely the same beneficial effect. Pp.15-18.
464 N.W.2d 507, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Kennedy, Souter, and Thomas, JJ., joined. White, J., filed
an opinion concurring in the judgment, in which Blackmun and
O'Connor, JJ., joined, and in which Stevens, J., joined except as to
Part I-A. Blackmun, J., filed an opinion concurring in the judgment.
Stevens, J., filed an opinion concurring in the judgment, in Part I of
which White and Blackmun, JJ., joined.
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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
--------
No. 90-7675
--------
R. A. V., PETITIONER v. CITY OF
ST. PAUL, MINNESOTA
on writ of certiorari to the supreme court of
minnesota
[June 22, 1992]
Justice Scalia delivered the opinion of the Court.
In the predawn hours of June 21, 1990, petitioner and
several other teenagers allegedly assembled a crudely-made
cross by taping together broken chair legs. They then
allegedly burned the cross inside the fenced yard of a black
family that lived across the street from the house where
petitioner was staying. Although this conduct could have
been punished under any of a number of laws, one of the
two provisions under which respondent city of St. Paul
chose to charge petitioner (then a juvenile) was the St. Paul
Bias-Motivated Crime Ordinance, St. Paul, Minn. Legis.
Code 292.02 (1990), which provides:
-Whoever places on public or private property a
symbol, object, appellation, characterization or graffiti,
including, but not limited to, a burning cross or Nazi
swastika, which one knows or has reasonable grounds
to know arouses anger, alarm or resentment in others
on the basis of race, color, creed, religion or gender
commits disorderly conduct and shall be guilty of a
misdemeanor.-
Petitioner moved to dismiss this count on the ground that
the St. Paul ordinance was substantially overbroad and
impermissibly content-based and therefore facially invalid
under the First Amendment. The trial court granted this
motion, but the Minnesota Supreme Court reversed. That
court rejected petitioner's overbreadth claim because, as
construed in prior Minnesota cases, see, e.g., In re Welfare
of S. L. J., 263 N. W. 2d 412 (Minn. 1978), the modifying
phrase -arouses anger, alarm or resentment in others-
limited the reach of the ordinance to conduct that amounts
to -fighting words,- i.e., -conduct that itself inflicts injury
or tends to incite immediate violence . . .,- In re Welfare of
R. A. V., 464 N. W. 2d 507, 510 (Minn. 1991) (citing
Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942)),
and therefore the ordinance reached only expression -that
the first amendment does not protect.- 464 N. W. 2d, at
511. The court also concluded that the ordinance was not
impermissibly content-based because, in its view, -the
ordinance is a narrowly tailored means toward accomplish-
ing the compelling governmental interest in protecting the
community against bias-motivated threats to public safety
and order.- Ibid. We granted certiorari, 501 U. S. ___
(1991).
I
In construing the St. Paul ordinance, we are bound by the
construction given to it by the Minnesota court. Posadas de
Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478
U. S. 328, 339 (1986); New York v. Ferber, 458 U. S. 747,
769, n. 24 (1982); Terminiello v. Chicago, 337 U. S. 1, 4
(1949). Accordingly, we accept the Minnesota Supreme
Court's authoritative statement that the ordinance reaches
only those expressions that constitute -fighting words-
within the meaning of Chaplinsky. 464 N. W. 2d, at
510-511. Petitioner and his amici urge us to modify the
scope of the Chaplinsky formulation, thereby invalidating
the ordinance as -substantially overbroad,- Broadrick v.
Oklahoma, 413 U. S. 601, 610 (1973). We find it unneces-
sary to consider this issue. Assuming, arguendo, that all of
the expression reached by the ordinance is proscribable
under the -fighting words- doctrine, we nonetheless
conclude that the ordinance is facially unconstitutional in
that it prohibits otherwise permitted speech solely on the
basis of the subjects the speech addresses.
The First Amendment generally prevents government
from proscribing speech, see, e.g., Cantwell v. Connecticut,
310 U. S. 296, 309-311 (1940), or even expressive conduct,
see, e.g., Texas v. Johnson, 491 U. S. 397, 406 (1989),
because of disapproval of the ideas expressed. Content-
based regulations are presumptively invalid. Simon &
Schuster, Inc. v. Members of N. Y. State Crime Victims Bd.,
502 U. S. ___, ___ (1991) (slip op., at 8-9); id., at ___
(Kennedy, J., concurring in judgment) (slip op., at 3-4);
Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of
N. Y., 447 U. S. 530, 536 (1980); Police Dept. of Chicago v.
Mosley, 408 U. S. 92, 95 (1972). From 1791 to the present,
however, our society, like other free but civilized societies,
has permitted restrictions upon the content of speech in a
few limited areas, which are -of such slight social value as
a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order
and morality.- Chaplinsky, supra, at 572. We have
recognized that -the freedom of speech- referred to by the
First Amendment does not include a freedom to disregard
these traditional limitations. See, e.g., Roth v. United
States, 354 U. S. 476 (1957) (obscenity); Beauharnais v.
Illinois, 343 U. S. 250 (1952) (defamation); Chaplinsky v.
New Hampshire, supra, (-fighting words-); see generally
Simon & Schuster, supra, at ___ (Kennedy, J., concurring
in judgment) (slip op., at 4). Our decisions since the 1960's
have narrowed the scope of the traditional categorical
exceptions for defamation, see New York Times Co. v.
Sullivan, 376 U. S. 254 (1964); Gertz v. Robert Welch, Inc.,
418 U. S. 323 (1974); see generally Milkovich v. Lorain
Journal Co., 497 U. S. 1, 13-17 (1990), and for obscenity,
see Miller v. California, 413 U. S. 15 (1973), but a limited
categorical approach has remained an important part of our
First Amendment jurisprudence.
We have sometimes said that these categories of expres-
sion are -not within the area of constitutionally protected
speech,- Roth, supra, at 483; Beauharnais, supra, at 266;
Chaplinsky, supra, at 571-572, or that the -protection of the
First Amendment does not extend- to them, Bose Corp. v.
Consumers Union of United States, Inc., 466 U. S. 485, 504
(1984); Sable Communications of Cal., Inc. v. FCC, 492
U. S. 115, 124 (1989). Such statements must be taken in
context, however, and are no more literally true than is the
occasionally repeated shorthand characterizing obscenity
-as not being speech at all,- Sunstein, Pornography and the
First Amendment, 1986 Duke L. J. 589, 615, n. 146. What
they mean is that these areas of speech can, consistently
with the First Amendment, be regulated because of their
constitutionally proscribable content (obscenity, defamation,
etc.)-not that they are categories of speech entirely
invisible to the Constitution, so that they may be made the
vehicles for content discrimination unrelated to their
distinctively proscribable content. Thus, the government
may proscribe libel; but it may not make the further
content discrimination of proscribing only libel critical of
the government. We recently acknowledged this distinction
in Ferber, 458 U. S., at 763, where, in upholding New
York's child pornography law, we expressly recognized that
there was no -question here of censoring a particular
literary theme . . . .- See also id., at 775 (O'Connor, J.,
concurring) (-As drafted, New York's statute does not
attempt to suppress the communication of particular
ideas-).
Our cases surely do not establish the proposition that the
First Amendment imposes no obstacle whatsoever to
regulation of particular instances of such proscribable
expression, so that the government -may regulate [them]
freely,- post, at 4 (White, J., concurring in judgment). That
would mean that a city council could enact an ordinance
prohibiting only those legally obscene works that contain
criticism of the city government or, indeed, that do not
include endorsement of the city government. Such a
simplistic, all-or-nothing-at-all approach to First Amend-
ment protection is at odds with common sense and with our
jurisprudence as well. It is not true that -fighting words-
have at most a -de minimis- expressive content, ibid., or
that their content is in all respects -worthless and unde-
serving of constitutional protection,- post, at 6; sometimes
they are quite expressive indeed. We have not said that
they constitute -no part of the expression of ideas,- but only
that they constitute -no essential part of any exposition of
ideas.- Chaplinsky, 315 U. S., at 572 (emphasis added).
The proposition that a particular instance of speech can
be proscribable on the basis of one feature (e.g., obscenity)
but not on the basis of another (e.g., opposition to the city
government) is commonplace, and has found application in
many contexts. We have long held, for example, that
nonverbal expressive activity can be banned because of the
action it entails, but not because of the ideas it express-
es-so that burning a flag in violation of an ordinance
against outdoor fires could be punishable, whereas burning
a flag in violation of an ordinance against dishonoring the
flag is not. See Johnson, 491 U. S., at 406-407. See also
Barnes v. Glen Theatre, Inc., 501 U. S. ___, ___-___ (1991)
(plurality) (slip op., at 4-6); id., at ___-___ (Scalia, J.,
concurring in judgment) (slip op., at 5-6); id., at ___-___
(Souter, J., concurring in judgment) (slip op., at 1-2);
United States v. O'Brien, 391 U. S. 367, 376-377 (1968).
Similarly, we have upheld reasonable -time, place, or
manner- restrictions, but only if they are -justified without
reference to the content of the regulated speech.- Ward v.
Rock Against Racism, 491 U. S. 781, 791 (1989) (internal
quotation marks omitted); see also Clark v. Community for
Creative Non-Violence, 468 U. S. 288, 298 (1984) (noting
that the O'Brien test differs little from the standard applied
to time, place, or manner restrictions). And just as the
power to proscribe particular speech on the basis of a
noncontent element (e.g., noise) does not entail the power
to proscribe the same speech on the basis of a content
element; so also, the power to proscribe it on the basis of
one content element (e.g., obscenity) does not entail the
power to proscribe it on the basis of other content elements.
In other words, the exclusion of -fighting words- from the
scope of the First Amendment simply means that, for
purposes of that Amendment, the unprotected features of
the words are, despite their verbal character, essentially a
-nonspeech- element of communication. Fighting words are
thus analogous to a noisy sound truck: Each is, as Justice
Frankfurter recognized, a -mode of speech,- Niemotko v.
Maryland, 340 U. S. 268, 282 (1951) (Frankfurter, J.,
concurring in result); both can be used to convey an idea;
but neither has, in and of itself, a claim upon the First
Amendment. As with the sound truck, however, so also
with fighting words: The government may not regulate use
based on hostility-or favoritism-towards the underlying
message expressed. Compare Frisby v. Schultz, 487 U. S.
474 (1988) (upholding, against facial challenge, a content-
neutral ban on targeted residential picketing) with Carey v.
Brown, 447 U. S. 455 (1980) (invalidating a ban on residen-
tial picketing that exempted labor picketing).
The concurrences describe us as setting forth a new First
Amendment principle that prohibition of constitutionally
proscribable speech cannot be -underinclusiv[e],- post, at 6
(White, J., concurring in judgment)-a First Amendment
-absolutism- whereby -within a particular `proscribable'
category of expression, . . . a government must either pro-
scribe all speech or no speech at all,- post, at 4 (Stevens,
J., concurring in judgment). That easy target is of the
concurrences' own invention. In our view, the First
Amendment imposes not an -underinclusiveness- limitation
but a -content discrimination- limitation upon a State's
prohibition of proscribable speech. There is no problem
whatever, for example, with a State's prohibiting obscenity
(and other forms of proscribable expression) only in certain
media or markets, for although that prohibition would be
-underinclusive,- it would not discriminate on the basis of
content. See, e.g., Sable Communications, 492 U. S., at
124-126 (upholding 47 U. S. C. 223(b)(1) (1988), which
prohibits obscene telephone communications).
Even the prohibition against content discrimination that
we assert the First Amendment requires is not absolute. It
applies differently in the context of proscribable speech
than in the area of fully protected speech. The rationale of
the general prohibition, after all, is that content discrimina-
tion -rais[es] the specter that the Government may effec-
tively drive certain ideas or viewpoints from the market-
place,- Simon & Schuster, 502 U. S., at ___ (slip op., at 9);
Leathers v. Medlock, 499 U. S. ___, ___ (1991); FCC v.
League of Women Voters of California, 468 U. S. 364,
383-384 (1984); Consolidated Edison Co., 447 U. S., at 536;
Police Dept. of Chicago v. Mosley, 408 U. S., at 95-98. But
content discrimination among various instances of a class
of proscribable speech often does not pose this threat.
When the basis for the content discrimination consists
entirely of the very reason the entire class of speech at
issue is proscribable, no significant danger of idea or
viewpoint discrimination exists. Such a reason, having
been adjudged neutral enough to support exclusion of the
entire class of speech from First Amendment protection, is
also neutral enough to form the basis of distinction within
the class. To illustrate: A State might choose to prohibit
only that obscenity which is the most patently offensive in
its prurience-i.e., that which involves the most lascivious
displays of sexual activity. But it may not prohibit, for
example, only that obscenity which includes offensive
political messages. See Kucharek v. Hanaway, 902 F. 2d
513, 517 (CA7 1990), cert. denied, 498 U. S. ___ (1991).
And the Federal Government can criminalize only those
threats of violence that are directed against the President,
see 18 U. S. C. 871-since the reasons why threats of
violence are outside the First Amendment (protecting
individuals from the fear of violence, from the disruption
that fear engenders, and from the possibility that the
threatened violence will occur) have special force when
applied to the person of the President. See Watts v. United
States, 394 U. S. 705, 707 (1969) (upholding the facial
validity of 871 because of the -overwhelmin[g] interest in
protecting the safety of [the] Chief Executive and in
allowing him to perform his duties without interference
from threats of physical violence-). But the Federal
Government may not criminalize only those threats against
the President that mention his policy on aid to inner cities.
And to take a final example (one mentioned by Justice
Stevens, post, at 6-7), a State may choose to regulate price
advertising in one industry but not in others, because the
risk of fraud (one of the characteristics of commercial
speech that justifies depriving it of full First Amendment
protection, see Virginia Pharmacy Bd. v. Virginia Citizens
Consumer Council, Inc., 425 U. S. 748, 771-772 (1976)) is
in its view greater there. Cf. Morales v. Trans World
Airlines, Inc., 504 U. S. ___ (1992) (state regulation of
airline advertising); Ohralik v. Ohio State Bar Assn., 436
U. S. 447 (1978) (state regulation of lawyer advertising).
But a State may not prohibit only that commercial advertis-
ing that depicts men in a demeaning fashion, see, e.g., L. A.
Times, Aug. 8, 1989, section 4, p. 6, col. 1.
Another valid basis for according differential treatment
to even a content-defined subclass of proscribable speech is
that the subclass happens to be associated with particular
-secondary effects- of the speech, so that the regulation is
-justified without reference to the content of the . . .
speech,- Renton v. Playtime Theatres, Inc., 475 U. S. 41, 48
(1986) (quoting, with emphasis, Virginia Pharmacy Bd.,
supra, at 771); see also Young v. American Mini Theatres,
Inc., 427 U. S. 50, 71, n. 34 (1976) (plurality); id., at 80-82
(Powell, J., concurring); Barnes, 501 U. S., at ___-___
(Souter, J., concurring in judgment) (slip op., at 3-7).
A State could, for example, permit all obscene live perfor-
mances except those involving minors. Moreover, since
words can in some circumstances violate laws directed not
against speech but against conduct (a law against treason,
for example, is violated by telling the enemy the nation's
defense secrets), a particular content-based subcategory of
a proscribable class of speech can be swept up incidentally
within the reach of a statute directed at conduct rather
than speech. See id., at ___ (plurality) (slip op., at 4); id.,
at ___ (Scalia, J., concurring in judgment) (slip op., at 5-6);
id., at ___ (Souter, J., concurring in judgment) (slip op., at
1-2); FTC v. Superior Court Trial Lawyers Assn., 493 U. S.
411, 425-432 (1990); O'Brien, 391 U. S., at 376-377. Thus,
for example, sexually derogatory -fighting words,- among
other words, may produce a violation of Title VII's general
prohibition against sexual discrimination in employment
practices, 42 U. S. C. 2000e-2; 29 CFR 1604.11 (1991).
See also 18 U. S. C. 242; 42 U. S. C. 1981, 1982. Where
the government does not target conduct on the basis of its
expressive content, acts are not shielded from regulation
merely because they express a discriminatory idea or
philosophy.
These bases for distinction refute the proposition that the
selectivity of the restriction is -even arguably `conditioned
upon the sovereign's agreement with what a speaker may
intend to say.'- Metromedia, Inc. v. San Diego, 453 U. S.
490, 555 (1981) (Stevens, J., dissenting in part) (citation
omitted). There may be other such bases as well. Indeed,
to validate such selectivity (where totally proscribable
speech is at issue) it may not even be necessary to identify
any particular -neutral- basis, so long as the nature of the
content discrimination is such that there is no realistic
possibility that official suppression of ideas is afoot. (We
cannot think of any First Amendment interest that would
stand in the way of a State's prohibiting only those obscene
motion pictures with blue-eyed actresses.) Save for that
limitation, the regulation of -fighting words,- like the
regulation of noisy speech, may address some offensive
instances and leave other, equally offensive, instances
alone. See Posadas de Puerto Rico, 478 U. S., at 342-343.
II
Applying these principles to the St. Paul ordinance, we
conclude that, even as narrowly construed by the Minnesota
Supreme Court, the ordinance is facially unconstitutional.
Although the phrase in the ordinance, -arouses anger,
alarm or resentment in others,- has been limited by the
Minnesota Supreme Court's construction to reach only those
symbols or displays that amount to -fighting words,- the
remaining, unmodified terms make clear that the ordinance
applies only to -fighting words- that insult, or provoke
violence, -on the basis of race, color, creed, religion or
gender.- Displays containing abusive invective, no matter
how vicious or severe, are permissible unless they are
addressed to one of the specified disfavored topics. Those
who wish to use -fighting words- in connection with other
ideas-to express hostility, for example, on the basis of
political affiliation, union membership, or homosexual-
ity-are not covered. The First Amendment does not per-
mit St. Paul to impose special prohibitions on those
speakers who express views on disfavored subjects. See
Simon & Schuster, 502 U. S., at ___ (slip op., at 8-9);
Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221,
229-230 (1987).
In its practical operation, moreover, the ordinance goes
even beyond mere content discrimination, to actual
viewpoint discrimination. Displays containing some
words-odious racial epithets, for example-would be
prohibited to proponents of all views. But -fighting words-
that do not themselves invoke race, color, creed, religion, or
gender-aspersions upon a person's mother, for exam-
ple-would seemingly be usable ad libitum in the placards
of those arguing in favor of racial, color, etc. tolerance and
equality, but could not be used by that speaker's opponents.
One could hold up a sign saying, for example, that all -anti-
Catholic bigots- are misbegotten; but not that all -papists-
are, for that would insult and provoke violence -on the basis
of religion.- St. Paul has no such authority to license one
side of a debate to fight freestyle, while requiring the other
to follow Marquis of Queensbury Rules.
What we have here, it must be emphasized, is not a
prohibition of fighting words that are directed at certain
persons or groups (which would be facially valid if it met
the requirements of the Equal Protection Clause); but
rather, a prohibition of fighting words that contain (as the
Minnesota Supreme Court repeatedly emphasized) mes-
sages of -bias-motivated- hatred and in particular, as ap-
plied to this case, messages -based on virulent notions of
racial supremacy.- 464 N. W. 2d, at 508, 511. One must
wholeheartedly agree with the Minnesota Supreme Court
that -[i]t is the responsibility, even the obligation, of diverse
communities to confront such notions in whatever form they
appear,- ibid., but the manner of that confrontation cannot
consist of selective limitations upon speech. St. Paul's brief
asserts that a general -fighting words- law would not meet
the city's needs because only a content-specific measure can
communicate to minority groups that the -group hatred-
aspect of such speech -is not condoned by the majority.-
Brief for Respondent 25. The point of the First Amendment
is that majority preferences must be expressed in some
fashion other than silencing speech on the basis of its
content.
Despite the fact that the Minnesota Supreme Court and
St. Paul acknowledge that the ordinance is directed at
expression of group hatred, Justice Stevens suggests that
this -fundamentally misreads- the ordinance. Post, at
18-19. It is directed, he claims, not to speech of a particu-
lar content, but to particular -injur[ies]- that are -qualita-
tively different- from other injuries. Post, at 9. This is
word-play. What makes the anger, fear, sense of dishonor,
etc. produced by violation of this ordinance distinct from the
anger, fear, sense of dishonor, etc. produced by other
fighting words is nothing other than the fact that it is
caused by a distinctive idea, conveyed by a distinctive
message. The First Amendment cannot be evaded that
easily. It is obvious that the symbols which will arouse
-anger, alarm or resentment in others on the basis of race,
color, creed, religion or gender- are those symbols that
communicate a message of hostility based on one of these
characteristics. St. Paul concedes in its brief that the
ordinance applies only to -racial, religious, or gender-
specific symbols- such as -a burning cross, Nazi swastika or
other instrumentality of like import.- Brief for Respon-
dent 8. Indeed, St. Paul argued in the Juvenile Court that
-[t]he burning of a cross does express a message and it is,
in fact, the content of that message which the St. Paul
Ordinance attempts to legislate.- Memorandum from the
Ramsey County Attorney to the Honorable Charles A.
Flinn, Jr., dated July 13, 1990, in In re Welfare of R. A. V.,
No. 89-D-1231 (Ramsey Cty. Juvenile Ct.), p. 1, reprinted
in App. to Brief for Petitioner C-1.
The content-based discrimination reflected in the St. Paul
ordinance comes within neither any of the specific excep-
tions to the First Amendment prohibition we discussed
earlier, nor within a more general exception for content
discrimination that does not threaten censorship of ideas.
It assuredly does not fall within the exception for content
discrimination based on the very reasons why the particular
class of speech at issue (here, fighting words) is proscri-
bable. As explained earlier, see supra, at 8, the reason why
fighting words are categorically excluded from the protec-
tion of the First Amendment is not that their content
communicates any particular idea, but that their content
embodies a particularly intolerable (and socially unneces-
sary) mode of expressing whatever idea the speaker wishes
to convey. St. Paul has not singled out an especially
offensive mode of expression-it has not, for example,
selected for prohibition only those fighting words that
communicate ideas in a threatening (as opposed to a merely
obnoxious) manner. Rather, it has proscribed fighting
words of whatever manner that communicate messages of
racial, gender, or religious intolerance. Selectivity of this
sort creates the possibility that the city is seeking to
handicap the expression of particular ideas. That possibil-
ity would alone be enough to render the ordinance presump-
tively invalid, but St. Paul's comments and concessions in
this case elevate the possibility to a certainty.
St. Paul argues that the ordinance comes within another
of the specific exceptions we mentioned, the one that allows
content discrimination aimed only at the -secondary effects-
of the speech, see Renton v. Playtime Theatres, Inc., 475
U. S. 41 (1986). According to St. Paul, the ordinance is
intended, -not to impact on [sic] the right of free expression
of the accused,- but rather to -protect against the victimiza-
tion of a person or persons who are particularly vulnerable
because of their membership in a group that historically
has been discriminated against.- Brief for Respondent 28.
Even assuming that an ordinance that completely pro-
scribes, rather than merely regulates, a specified category
of speech can ever be considered to be directed only to the
secondary effects of such speech, it is clear that the St. Paul
ordinance is not directed to secondary effects within the
meaning of Renton. As we said in Boos v. Barry, 485 U. S.
312 (1988), -[l]isteners' reactions to speech are not the type
of `secondary effects' we referred to in Renton.- Id., at 321.
-The emotive impact of speech on its audience is not a
`secondary effect.'- Ibid. See also id., at 334 (opinion of
Brennan, J.).
It hardly needs discussion that the ordinance does not fall
within some more general exception permitting all selectiv-
ity that for any reason is beyond the suspicion of official
suppression of ideas. The statements of St. Paul in this
very case afford ample basis for, if not full confirmation of,
that suspicion.
Finally, St. Paul and its amici defend the conclusion of
the Minnesota Supreme Court that, even if the ordinance
regulates expression based on hostility towards its protected
ideological content, this discrimination is nonetheless
justified because it is narrowly tailored to serve compelling
state interests. Specifically, they assert that the ordinance
helps to ensure the basic human rights of members of
groups that have historically been subjected to discrimina-
tion, including the right of such group members to live in
peace where they wish. We do not doubt that these
interests are compelling, and that the ordinance can be said
to promote them. But the -danger of censorship- presented
by a facially content-based statute, Leathers v. Medlock, 499
U. S. ___, ___ (1991) (slip op., at 8), requires that that
weapon be employed only where it is -necessary to serve the
^^ ^^^^^^^^ ^^^^ ^^^^^ ^^ ^^ ^^^^^^^^^^ ^^ ^^^^^ ^^^
asserted [compelling] interest,- Burson v. Freeman, 504
^^^^^^^^ ^^^^^^^^^^^^ ^^^^^^^^ -- uggh.
U. S. ___, ___ (1992) (plurality) (slip op., at 8) (emphasis
added); Perry Education Assn. v. Perry Local Educators'
Assn., 460 U. S. 37, 45 (1983). The existence of adequate
content-neutral alternatives thus -undercut[s] significantly-
any defense of such a statute, Boos v. Barry, supra, at 329,
casting considerable doubt on the government's protesta-
tions that -the asserted justification is in fact an accurate
description of the purpose and effect of the law,- Burson,
supra, at ___ (Kennedy, J., concurring) (slip op., at 2). See
Boos, supra, at 324-329; cf. Minneapolis Star & Tribune Co.
v. Minnesota Comm'r of Revenue, 460 U. S. 575, 586-587
(1983). The dispositive question in this case, therefore, is
whether content discrimination is reasonably necessary to
achieve St. Paul's compelling interests; it plainly is not. An
ordinance not limited to the favored topics, for example,
would have precisely the same beneficial effect. In fact the
only interest distinctively served by the content limitation
is that of displaying the city council's special hostility
towards the particular biases thus singled out. That is
precisely what the First Amendment forbids. The politi-
cians of St. Paul are entitled to express that hostility-but
not through the means of imposing unique limitations upon
speakers who (however benightedly) disagree.
* * *
Let there be no mistake about our belief that burning a
cross in someone's front yard is reprehensible. But St. Paul
has sufficient means at its disposal to prevent such behav-
ior without adding the First Amendment to the fire.
The judgment of the Minnesota Supreme Court is
reversed, and the case is remanded for proceedings not
inconsistent with this opinion.
It is so ordered.
========== ftp.cwru.edu:hermes/ascii/90-7675.ZC1.filt ===============
SUPREME COURT OF THE UNITED STATES
--------
No. 90-7675
--------
R. A. V., PETITIONER v. CITY OF
ST. PAUL, MINNESOTA
on writ of certiorari to the supreme court of
minnesota
[June 22, 1992]
Justice White, with whom Justice Blackmun and
Justice O'Connor join, and with whom Justice Stevens
joins except as to Part I(A), concurring in the judgment.
I agree with the majority that the judgment of the
Minnesota Supreme Court should be reversed. However,
our agreement ends there.
This case could easily be decided within the contours of
established First Amendment law by holding, as petitioner
argues, that the St. Paul ordinance is fatally overbroad
because it criminalizes not only unprotected expression but
expression protected by the First Amendment. See Part II,
infra. Instead, -find[ing] it unnecessary- to consider the
questions upon which we granted review, ante, at 3, the
Court holds the ordinance facially unconstitutional on a
ground that was never presented to the Minnesota Supreme
Court, a ground that has not been briefed by the parties
before this Court, a ground that requires serious departures
from the teaching of prior cases and is inconsistent with the
plurality opinion in Burson v. Freeman, 504 U. S. ---
(1992), which was joined by two of the five Justices in the
majority in the present case.
This Court ordinarily is not so eager to abandon its
precedents. Twice within the past month, the Court has
declined to overturn longstanding but controversial deci-
sions on questions of constitutional law. See Allied Signal,
Inc. v. Director, Division of Taxation, 504 U. S. - (1992);
Quill Corp. v. North Dakota, 504 U. S. - (1992). In each
case, we had the benefit of full briefing on the critical issue,
so that the parties and amici had the opportunity to apprise
us of the impact of a change in the law. And in each case,
the Court declined to abandon its precedents, invoking the
principle of stare decisis. Allied Signal, Inc., supra, at -
(slip op., at 12); Quill Corp., supra, at - (slip op., at
17-18).
But in the present case, the majority casts aside long-
established First Amendment doctrine without the benefit
of briefing and adopts an untried theory. This is hardly a
judicious way of proceeding, and the Court's reasoning in
reaching its result is transparently wrong.
I
A
This Court's decisions have plainly stated that expression
falling within certain limited categories so lacks the values
the First Amendment was designed to protect that the
Constitution affords no protection to that expression.
Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), made
the point in the clearest possible terms:
-There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of
which have never been thought to raise any Constitu-
tional problem. . . . It has been well observed that such
utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to
truth that any benefit that may be derived from them
is clearly outweighed by the social interest in order and
morality.- Id., at 571-572.
See also Bose Corp. v. Consumers Union of United States,
Inc., 466 U. S. 485, 504 (1984) (citing Chaplinsky).
Thus, as the majority concedes, see ante, at 5, this Court
has long held certain discrete categories of expression to be
proscribable on the basis of their content. For instance, the
Court has held that the individual who falsely shouts -fire-
in a crowded theatre may not claim the protection of the
First Amendment. Schenck v. United States, 249 U. S. 47,
52 (1919). The Court has concluded that neither child
pornography, nor obscenity, is protected by the First
Amendment. New York v. Ferber, 458 U. S. 747, 764
(1982); Miller v. California, 413 U. S. 15, 20 (1973); Roth v.
United States, 354 U. S. 476, 484-485 (1957). And the
Court has observed that, -[l]eaving aside the special
considerations when public officials [and public figures] are
the target, a libelous publication is not protected by the
Constitution.- Ferber, supra, at 763 (citations omitted).
All of these categories are content based. But the Court
has held that First Amendment does not apply to them
because their expressive content is worthless or of de
minimis value to society. Chaplinsky, supra, at 571-572.
We have not departed from this principle, emphasizing
repeatedly that, -within the confines of [these] given
classification[s], the evil to be restricted so overwhelmingly
outweighs the expressive interests, if any, at stake, that no
process of case-by-case adjudication is required.- Ferber,
supra, at 763-764; Bigelow v. Virginia, 421 U. S. 809, 819
(1975). This categorical approach has provided a principled
and narrowly focused means for distinguishing between
expression that the government may regulate freely and
that which it may regulate on the basis of content only
upon a showing of compelling need.
Today, however, the Court announces that earlier Courts
did not mean their repeated statements that certain
categories of expression are -not within the area of constitu-
tionally protected speech.- Roth, supra, at 483. See ante,
at 5, citing Beauharnais v. Illinois, 343 U. S. 250, 266
(1952); Chaplinsky, supra, at 571-572; Bose Corp., supra, at
504; Sable Communications of Cal., Inc. v. FCC, 492 U. S.
115, 124 (1989). The present Court submits that such clear
statements -must be taken in context- and are not -literally
true.- Ante, at 5.
To the contrary, those statements meant precisely what
they said: The categorical approach is a firmly entrenched
part of our First Amendment jurisprudence. Indeed, the
Court in Roth reviewed the guarantees of freedom of
expression in effect at the time of the ratification of the
Constitution and concluded, -[i]n light of this history, it is
apparent that the unconditional phrasing of the First
Amendment was not intended to protect every utterance.-
354 U. S., at 482-483.
In its decision today, the Court points to -[n]othing . . . in
this Court's precedents warrant[ing] disregard of this
longstanding tradition.- Burson, 504 U. S., at --- (slip op.,
at 3) (Scalia, J., concurring in judgment); Allied Signal,
Inc., supra, at --- (slip op., at 12). Nevertheless, the
majority holds that the First Amendment protects those
narrow categories of expression long held to be undeserving
of First Amendment protection-at least to the extent that
lawmakers may not regulate some fighting words more
strictly than others because of their content. The Court
announces that such content-based distinctions violate the
First Amendment because -the government may not
regulate use based on hostility-or favoritism-towards the
underlying message expressed.- Ante, at 8. Should the
government want to criminalize certain fighting words, the
Court now requires it to criminalize all fighting words.
To borrow a phrase, -Such a simplistic, all-or-nothing-at-
all approach to First Amendment protection is at odds with
common sense and with our jurisprudence as well.- Ante,
at 6. It is inconsistent to hold that the government may
proscribe an entire category of speech because the content
of that speech is evil, Ferber, supra, at 763-764; but that
the government may not treat a subset of that category
differently without violating the First Amendment; the
content of the subset is by definition worthless and unde-
serving of constitutional protection.
The majority's observation that fighting words are ``quite
expressive indeed,'' ante, at 7, is no answer. Fighting words
are not a means of exchanging views, rallying supporters,
or registering a protest; they are directed against individu-
als to provoke violence or to inflict injury. Chaplinsky, 315
U. S., at 572. Therefore, a ban on all fighting words or on
a subset of the fighting words category would restrict only
the social evil of hate speech, without creating the danger
of driving viewpoints from the marketplace. See ante, at 9.
Therefore, the Court's insistence on inventing its brand
of First Amendment underinclusiveness puzzles me. The
overbreadth doctrine has the redeeming virtue of attempt-
ing to avoid the chilling of protected expression, Broadrick
v. Oklahoma, 413 U. S. 601, 612 (1973); Osborne v. Ohio,
495 U. S. 103, 112, n. 8 (1990); Brockett v. Spokane Arcades,
Inc., 472 U. S. 491, 503 (1985); Ferber, supra, at 772, but
the Court's new -underbreadth- creation serves no desirable
function. Instead, it permits, indeed invites, the continua-
tion of expressive conduct that in this case is evil and
worthless in First Amendment terms, see Ferber, supra, at
763-764; Chaplinsky, supra, at 571-572, until the city of St.
Paul cures the underbreadth by adding to its ordinance a
catch-all phrase such as -and all other fighting words that
may constitutionally be subject to this ordinance.-
Any contribution of this holding to First Amendment
jurisprudence is surely a negative one, since it necessarily
signals that expressions of violence, such as the message of
intimidation and racial hatred conveyed by burning a cross
on someone's lawn, are of sufficient value to outweigh the
social interest in order and morality that has traditionally
placed such fighting words outside the First Amendment.
Indeed, by characterizing fighting words as a form of
`'debate,'' ante, at 13, the majority legitimates hate speech
as a form of public discussion.
Furthermore, the Court obscures the line between speech
that could be regulated freely on the basis of content (i.e.,
the narrow categories of expression falling outside the First
Amendment) and that which could be regulated on the
basis of content only upon a showing of a compelling state
interest (i.e., all remaining expression). By placing fighting
words, which the Court has long held to be valueless, on at
least equal constitutional footing with political discourse
and other forms of speech that we have deemed to have the
greatest social value, the majority devalues the latter
category. See Burson v. Freeman, supra, at --- (slip op., at
4-5); Eu v. San Francisco County Democratic Central
Comm., 489 U. S. 214, 222-223 (1989).
B
In a second break with precedent, the Court refuses to
sustain the ordinance even though it would survive under
the strict scrutiny applicable to other protected expression.
Assuming, arguendo, that the St. Paul ordinance is a
content-based regulation of protected expression, it never-
theless would pass First Amendment review under settled
law upon a showing that the regulation -`is necessary to
serve a compelling state interest and is narrowly drawn to
achieve that end.'- Simon & Schuster, Inc. v. New York
Crime Victims Board, 502 U. S. ---, --- (1991) (slip op., at
11) (quoting Arkansas Writers' Project, Inc., v. Ragland, 481
U. S. 221, 231 (1987)). St. Paul has urged that its ordi-
nance, in the words of the majority, -helps to ensure the
basic human rights of members of groups that have
historically been subjected to discrimination . . . .- Ante, at
17. The Court expressly concedes that this interest is
compelling and is promoted by the ordinance. Ibid.
Nevertheless, the Court treats strict scrutiny analysis as
irrelevant to the constitutionality of the legislation:
-The dispositive question . . . is whether content
discrimination is reasonably necessary in order to
achieve St. Paul's compelling interests; it plainly is not.
An ordinance not limited to the favored topics would
have precisely the same beneficial effect.- Ibid.
Under the majority's view, a narrowly drawn, content-based
ordinance could never pass constitutional muster if the
object of that legislation could be accomplished by banning
a wider category of speech. This appears to be a general
renunciation of strict scrutiny review, a fundamental tool of
First Amendment analysis.
This abandonment of the doctrine is inexplicable in light
of our decision in Burson v. Freeman, supra, which was
handed down just a month ago. In Burson, seven of the
eight participating members of the Court agreed that the
strict scrutiny standard applied in a case involving a First
Amendment challenge to a content-based statute. See id.,
at ___ (slip op., at 6) (plurality); id., at --- (slip op., at 1)
(Stevens, J., dissenting). The statute at issue prohibited
the solicitation of votes and the display or distribution of
campaign materials within 100 feet of the entrance to a
polling place. The plurality concluded that the legislation
survived strict scrutiny because the State had asserted a
compelling interest in regulating electioneering near polling
places and because the statute at issue was narrowly
tailored to accomplish that goal. Id., at --- (slip op., at
17-18).
Significantly, the statute in Burson did not proscribe all
speech near polling places; it restricted only political
speech. Id., at --- (slip op., at 5). The Burson plurality,
which included The Chief Justice and Justice Kennedy,
concluded that the distinction between types of speech
required application of strict scrutiny, but it squarely
rejected the proposition that the legislation failed First
Amendment review because it could have been drafted in
broader, content-neutral terms:
-States adopt laws to address the problems that con-
front them. The First Amendment does not require
States to regulate for problems that do not exist.- Id.,
at --- (slip op., at 16) (emphasis added).
This reasoning is in direct conflict with the majority's
analysis in the present case, which leaves two options to
lawmakers attempting to regulate expressions of violence:
(1) enact a sweeping prohibition on an entire class of speech
(thereby requiring -regulat[ion] for problems that do not
exist); or (2) not legislate at all.
Had the analysis adopted by the majority in the present
case been applied in Burson, the challenged election law
would have failed constitutional review, for its content-
based distinction between political and nonpolitical speech
could not have been characterized as -reasonably neces-
sary,- ante, at 17, to achieve the State's interest in regulat-
ing polling place premises.
As with its rejection of the Court's categorical analysis,
the majority offers no reasoned basis for discarding our
firmly established strict scrutiny analysis at this time. The
majority appears to believe that its doctrinal revisionism is
necessary to prevent our elected lawmakers from prohibit-
ing libel against members of one political party but not
another and from enacting similarly preposterous laws.
Ante, at 5-6. The majority is misguided.
Although the First Amendment does not apply to catego-
ries of unprotected speech, such as fighting words, the
Equal Protection Clause requires that the regulation of
unprotected speech be rationally related to a legitimate
government interest. A defamation statute that drew
distinctions on the basis of political affiliation or -an
ordinance prohibiting only those legally obscene works that
contain criticism of the city government,- ante, at 6, would
unquestionably fail rational basis review.
Turning to the St. Paul ordinance and assuming arguen-
do, as the majority does, that the ordinance is not constitu-
tionally overbroad (but see Part II, infra), there is no
question that it would pass equal protection review. The
ordinance proscribes a subset of -fighting words,- those that
injure -on the basis of race, color, creed, religion or gender.-
This selective regulation reflects the City's judgment that
harms based on race, color, creed, religion, or gender are
more pressing public concerns than the harms caused by
other fighting words. In light of our Nation's long and
painful experience with discrimination, this determination
is plainly reasonable. Indeed, as the majority concedes, the
interest is compelling. Ante, at 17.
C
The Court has patched up its argument with an appar-
ently nonexhaustive list of ad hoc exceptions, in what can
be viewed either as an attempt to confine the effects of its
decision to the facts of this case, see post, at --- (slip op.,
at 1-2) (Blackmun, J., concurring in judgment), or as an
effort to anticipate some of the questions that will arise
from its radical revision of First Amendment law.
For instance, if the majority were to give general applica-
tion to the rule on which it decides this case, today's
decision would call into question the constitutionality of the
statute making it illegal to threaten the life of the Presi-
dent. 18 U. S. C. 871. See Watts v. United States, 394
U. S. 705 (1969) (per curiam). Surely, this statute, by
singling out certain threats, incorporates a content-based
distinction; it indicates that the Government especially
disfavors threats against the President as opposed to
threats against all others. See ante, at 13. But because
the Government could prohibit all threats and not just
those directed against the President, under the Court's
theory, the compelling reasons justifying the enactment of
special legislation to safeguard the President would be
irrelevant, and the statute would fail First Amendment
review.
To save the statute, the majority has engrafted the
following exception onto its newly announced First Amend-
ment rule: Content-based distinctions may be drawn within
an unprotected category of speech if the basis for the
distinctions is ``the very reason the entire class of speech at
issue is proscribable.'' Ante, at 9. Thus, the argument goes,
the statute making it illegal to threaten the life of the
President is constitutional, ``since the reasons why threats
of violence are outside the First Amendment (protecting
individuals from the fear of violence, from the disruption
that fear engenders, and from the possibility that the
threatened violence will occur) have special force when
applied to the person of the President.'' Ante, at 10.
The exception swallows the majority's rule. Certainly, it
should apply to the St. Paul ordinance, since ``the reasons
why [fighting words] are outside the First Amendment . . .
have special force when applied to [groups that have
historically been subjected to discrimination].''
To avoid the result of its own analysis, the Court suggests
that fighting words are simply a mode of communication,
rather than a content-based category, and that the St. Paul
ordinance has not singled out a particularly objectionable
mode of communication. Ante, at 8, 15. Again, the majority
confuses the issue. A prohibition on fighting words is not
a time, place, or manner restriction; it is a ban on a class of
speech that conveys an overriding message of personal
injury and imminent violence, Chaplinsky, supra, at 572, a
message that is at its ugliest when directed against groups
that have long been the targets of discrimination. Accord-
ingly, the ordinance falls within the first exception to the
majority's theory.
As its second exception, the Court posits that certain
content-based regulations will survive under the new
regime if the regulated subclass ``happens to be associated
with particular `secondary effects' of the speech . . .,'' ante,
at 10, which the majority treats as encompassing instances
in which ``words can . . . violate laws directed not against
speech but against conduct . . .'' Ante, at 11. Again,
there is a simple explanation for the Court's eagerness to
craft an exception to its new First Amendment rule: Under
the general rule the Court applies in this case, Title VII
hostile work environment claims would suddenly be
unconstitutional.
Title VII makes it unlawful to discriminate -because of
[an] individual's race, color, religion, sex, or national
origin,- 42 U. S. C. 2000e-2(a)(1), and the regulations
covering hostile workplace claims forbid -sexual harass-
ment,- which includes -[u]nwelcome sexual advances,
requests for sexual favors, and other verbal or physical
conduct of a sexual nature- which creates -an intimidating,
hostile, or offensive working environment.- 29 CFR
1604.11(a) (1991). The regulation does not prohibit
workplace harassment generally; it focuses on what the
majority would characterize as the -disfavored topi[c]- of
sexual harassment. Ante, at 13. In this way, Title VII is
similar to the St. Paul ordinance that the majority con-
demns because it -impose[s] special prohibitions on those
speakers who express views on disfavored subjects.- Ibid.
Under the broad principle the Court uses to decide the
present case, hostile work environment claims based on
sexual harassment should fail First Amendment review;
because a general ban on harassment in the workplace
would cover the problem of sexual harassment, any attempt
to proscribe the subcategory of sexually harassing expres-
sion would violate the First Amendment.
Hence, the majority's second exception, which the Court
indicates would insulate a Title VII hostile work environ-
ment claim from an underinclusiveness challenge because
``sexually derogatory `fighting words'. . . may produce a
violation of Title VII's general prohibition against sexual
discrimination in employment practices.'' Ante, at 11. But
application of this exception to a hostile work environment
claim does not hold up under close examination.
First, the hostile work environment regulation is not
keyed to the presence or absence of an economic quid pro
quo, Meritor Savings Bank v. Vinson, 477 U. S. 57, 65
(1986), but to the impact of the speech on the victimized
worker. Consequently, the regulation would no more fall
within a secondary effects exception than does the St. Paul
ordinance. Ante, at 15-16. Second, the majority's focus on
the statute's general prohibition on discrimination glosses
over the language of the specific regulation governing
hostile working environment, which reaches beyond any
``incidental'' effect on speech. United States v. O'Brien, 391
U. S. 367, 376 (1968). If the relationship between the
broader statute and specific regulation is sufficent to bring
the Title VII regulation within O'Brien, then all St. Paul
need do to bring its ordinance within this exception is to
add some prefatory language concerning discrimination
generally.
As the third exception to the Court's theory for deciding
this case, the majority concocts a catchall exclusion to
protect against unforeseen problems, a concern that is
heightened here given the lack of briefing on the majority's
decisional theory. This final exception would apply in cases
in which ``there is no realistic possibility that official
suppression of ideas is afoot.'' Ante, at 12. As I have
demonstrated, this case does not concern the official
suppression of ideas. See supra, at 6. The majority
discards this notion out-of-hand. Ante, at 16.
As I see it, the Court's theory does not work and will do
nothing more than confuse the law. Its selection of this
case to rewrite First Amendment law is particularly
inexplicable, because the whole problem could have been
avoided by deciding this case under settled First Amend-
ment principles.
II
Although I disagree with the Court's analysis, I do agree
with its conclusion: The St. Paul ordinance is unconstitu-
tional. However, I would decide the case on overbreadth
grounds.
We have emphasized time and again that overbreadth
doctrine is an exception to the established principle that -a
person to whom a statute may constitutionally be applied
will not be heard to challenge that statute on the ground
that it may conceivably be applied unconstitutionally to
others, in other situations not before the Court.- Broadrick
v. Oklahoma, 413 U. S., at 610; Brockett v. Spokane
Arcades, Inc., 472 U. S., at 503-504. A defendant being
prosecuted for speech or expressive conduct may challenge
the law on its face if it reaches protected expression, even
when that person's activities are not protected by the First
Amendment. This is because -the possible harm to society
in permitting some unprotected speech to go unpunished is
outweighed by the possibility that protected speech of
others may be muted.- Broadrick, supra, at 612; Osborne
v. Ohio, 495 U. S., at 112, n. 8; New York v. Ferber, supra,
at 768-769; Schaumburg v. Citizens for a Better Environ-
ment, 444 U. S. 620, 634 (1980); Gooding v. Wilson, 405
U. S. 518, 521 (1972).
However, we have consistently held that, because over-
breadth analysis is -strong medicine,- it may be invoked to
strike an entire statute only when the overbreadth of the
statute is not only -real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep,- Broad-
rick, 413 U. S., at 615, and when the statute is not suscepti-
ble to limitation or partial invalidation. Id., at 613; Board
of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc.,
482 U. S. 569, 574 (1987). -When a federal court is dealing
with a federal statute challenged as overbroad, it should . . .
construe the statute to avoid constitutional problems, if the
statute is subject to a limiting construction.- Ferber, 458
U. S., at 769, n. 24. Of course, -[a] state court is also free
to deal with a state statute in the same way.- Ibid. See,
e.g., Osborne, 495 U. S. at 113-114.
Petitioner contends that the St. Paul ordinance is not
susceptible to a narrowing construction and that the
ordinance therefore should be considered as written, and
not as construed by the Minnesota Supreme Court.
Petitioner is wrong. Where a state court has interpreted a
provision of state law, we cannot ignore that interpretation,
even if it is not one that we would have reached if we were
construing the statute in the first instance. Ibid.; Kolender
v. Lawson, 461 U. S. 352, 355 (1983); Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494, n. 5
(1982).
Of course, the mere presence of a state court interpreta-
tion does not insulate a statute from overbreadth review.
We have stricken legislation when the construction supplied
by the state court failed to cure the overbreadth problem.
See, e.g., Lewis v. City of New Orleans, 415 U. S. 130,
132-133 (1974); Gooding, supra, at 524-525. But in such
cases, we have looked to the statute as construed in
determining whether it contravened the First Amendment.
Here, the Minnesota Supreme Court has provided an
authoritative construction of the St. Paul antibias ordi-
nance. Consideration of petitioner's overbreadth claim
must be based on that interpretation.
I agree with petitioner that the ordinance is invalid on its
face. Although the ordinance as construed reaches catego-
ries of speech that are constitutionally unprotected, it also
criminalizes a substantial amount of expression that-how-
ever repugnant-is shielded by the First Amendment.
In attempting to narrow the scope of the St. Paul antibias
ordinance, the Minnesota Supreme Court relied upon two
of the categories of speech and expressive conduct that fall
outside the First Amendment's protective sphere: words
that incite -imminent lawless action,- Brandenburg v. Ohio,
395 U. S. 444, 449 (1969), and -fighting- words, Chaplinsky
v. New Hampshire, 315 U. S., at 571-572. The Minnesota
Supreme Court erred in its application of the Chaplinsky
fighting words test and consequently interpreted the St.
Paul ordinance in a fashion that rendered the ordinance
facially overbroad.
In construing the St. Paul ordinance, the Minnesota
Supreme Court drew upon the definition of fighting words
that appears in Chaplinsky-words -which by their very
utterance inflict injury or tend to incite an immediate
breach of the peace.- Id., at 572. However, the Minnesota
court was far from clear in identifying the -injur[ies]-
inflicted by the expression that St. Paul sought to regulate.
Indeed, the Minnesota court emphasized (tracking the
language of the ordinance) that -the ordinance censors only
those displays that one knows or should know will create
anger, alarm or resentment based on racial, ethnic, gender
or religious bias.- In re Welfare of R. A. V., 464 N.W. 2d
507, 510 (1991). I therefore understand the court to have
ruled that St. Paul may constitutionally prohibit expression
that -by its very utterance- causes -anger, alarm or resent-
ment.-
Our fighting words cases have made clear, however, that
such generalized reactions are not sufficient to strip
expression of its constitutional protection. The mere fact
that expressive activity causes hurt feelings, offense, or
resentment does not render the expression unprotected.
See United States v. Eichman, 496 U. S. 310, 319 (1990);
Texas v. Johnson, 491 U. S. 397, 409, 414 (1989); Hustler
Magazine, Inc. v. Falwell, 485 U. S. 46, 55-56 (1988); FCC
v. Pacifica Foundation, 438 U. S. 726, 745 (1978); Hess v.
Indiana, 414 U. S. 105, 107-108 (1973); Cohen v. Califor-
nia, 403 U. S. 15, 20 (1971); Street v. New York, 394 U. S.
576, 592 (1969); Terminiello v. Chicago, 337 U. S. 1 (1949).
In the First Amendment context, -[c]riminal statutes
must be scrutinized with particular care; those that make
unlawful a substantial amount of constitutionally protected
conduct may be held facially invalid even if they also have
legitimate application.- Houston v. Hill, 482 U. S. 451, 459
(1987) (citation omitted). The St. Paul antibias ordinance
is such a law. Although the ordinance reaches conduct that
is unprotected, it also makes criminal expressive conduct
that causes only hurt feelings, offense, or resentment, and
is protected by the First Amendment. Cf. Lewis, supra, at
132. The ordinance is therefore fatally overbroad and
invalid on its face.
III
Today, the Court has disregarded two established
principles of First Amendment law without providing a
coherent replacement theory. Its decision is an arid,
doctrinaire interpretation, driven by the frequently irresist-
ible impulse of judges to tinker with the First Amendment.
The decision is mischievous at best and will surely confuse
the lower courts. I join the judgment, but not the folly of
the opinion.
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SUPREME COURT OF THE UNITED STATES
--------
No. 90-7675
--------
R. A. V., PETITIONER v. CITY OF
ST. PAUL, MINNESOTA
on writ of certiorari to the supreme court of
minnesota
[June 22, 1992]
Justice Blackmun, concurring in the judgment.
I regret what the Court has done in this case. The
majority opinion signals one of two possibilities: it will
serve as precedent for future cases, or it will not. Either
result is disheartening.
In the first instance, by deciding that a State cannot
regulate speech that causes great harm unless it also
regulates speech that does not (setting law and logic on
their heads), the Court seems to abandon the categorical
approach, and inevitably to relax the level of scrutiny
applicable to content-based laws. As Justice White points
out, this weakens the traditional protections of speech. If
all expressive activity must be accorded the same protec-
tion, that protection will be scant. The simple reality is
that the Court will never provide child pornography or
cigarette advertising the level of protection customarily
granted political speech. If we are forbidden from categoriz-
ing, as the Court has done here, we shall reduce protection
across the board. It is sad that in its effort to reach a
satisfying result in this case, the Court is willing to weaken
First Amendment protections.
In the second instance is the possibility that this case will
not significantly alter First Amendment jurisprudence, but,
instead, will be regarded as an aberration-a case where
the Court manipulated doctrine to strike down an ordinance
whose premise it opposed, namely, that racial threats and
verbal assaults are of greater harm than other fighting
words. I fear that the Court has been distracted from its
proper mission by the temptation to decide the issue over
-politically correct speech- and -cultural diversity,- neither
of which is presented here. If this is the meaning of today's
opinion, it is perhaps even more regrettable.
I see no First Amendment values that are compromised
by a law that prohibits hoodlums from driving minorities
out of their homes by burning crosses on their lawns, but I
see great harm in preventing the people of Saint Paul from
specifically punishing the race-based fighting words that so
prejudice their community.
I concur in the judgment, however, because I agree with
Justice White that this particular ordinance reaches
beyond fighting words to speech protected by the First
Amendment.
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SUPREME COURT OF THE UNITED STATES
--------
No. 90-7675
--------
R. A. V., PETITIONER v. CITY OF
ST. PAUL, MINNESOTA
on writ of certiorari to the supreme court of
minnesota
[June 22, 1992]
Justice Stevens, with whom Justice White and
Justice Blackmun join as to Part I, concurring in the judg-
ment.
Conduct that creates special risks or causes special harms
may be prohibited by special rules. Lighting a fire near an
ammunition dump or a gasoline storage tank is especially
dangerous; such behavior may be punished more severely
than burning trash in a vacant lot. Threatening someone
because of her race or religious beliefs may cause particu-
larly severe trauma or touch off a riot, and threatening a
high public official may cause substantial social disruption;
such threats may be punished more severely than threats
against someone based on, say, his support of a particular
athletic team. There are legitimate, reasonable, and
neutral justifications for such special rules.
This case involves the constitutionality of one such
ordinance. Because the regulated conduct has some
communicative content-a message of racial, religious or
gender hostility-the ordinance raises two quite different
First Amendment questions. Is the ordinance -overbroad-
because it prohibits too much speech? If not, is it
-underbroad- because it does not prohibit enough speech?
In answering these questions, my colleagues today
wrestle with two broad principles: first, that certain
-categories of expression [including `fighting words'] are `not
within the area of constitutionally protected speech,'- ante,
at 5 (White, J., concurring in judgment); and second, that
-[c]ontent-based regulations [of expression] are presump-
tively invalid.- Ante, at 4 (Opinion of the Court). Although
in past opinions the Court has repeated both of these
maxims, it has-quite rightly-adhered to neither with the
absolutism suggested by my colleagues. Thus, while I agree
that the St. Paul ordinance is unconstitutionally overbroad
for the reasons stated in Part II of Justice White's opinion,
I write separately to suggest how the allure of absolute
principles has skewed the analysis of both the majority and
concurring opinions.
I
Fifty years ago, the Court articulated a categorical
approach to First Amendment jurisprudence.
-There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of
which have never been thought to raise any Constitu-
tional problem. . . . It has been well observed that such
utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to
truth that any benefit that may be derived from them
is clearly outweighed by the social interest in order and
morality.- Chaplinsky v. New Hampshire, 315 U. S.
568, 571-572 (1942).
We have, as Justice White observes, often described such
categories of expression as -not within the area of constitu-
tionally protected speech.- Roth v. United States, 354 U. S.
476, 483 (1957).
The Court today revises this categorical approach. It is
not, the Court rules, that certain -categories- of expression
are -unprotected,- but rather that certain -elements- of
expression are wholly -proscribable.- To the Court, an
expressive act, like a chemical compound, consists of more
than one element. Although the act may be regulated
because it contains a proscribable element, it may not be
regulated on the basis of another (nonproscribable) element
it also contains. Thus, obscene antigovernment speech may
be regulated because it is obscene, but not because it is
antigovernment. Ante, at 6. It is this revision of the
categorical approach that allows the Court to assume that
the St. Paul ordinance proscribes only fighting words, while
at the same time concluding that the ordinance is invalid
because it imposes a content-based regulation on expressive
activity.
As an initial matter, the Court's revision of the categori-
cal approach seems to me something of an adventure in a
doctrinal wonderland, for the concept of -obscene anti-
government- speech is fantastical. The category of the
obscene is very narrow; to be obscene, expression must be
found by the trier of fact to -appea[l] to the prurient
interest, . . . depic[t] or describ[e], in a patently offensive
way, sexual conduct, [and] taken as a whole, lac[k] serious
literary, artistic, political or scientific value.- Miller v.
California, 413 U. S. 15, 24 (1973) (emphasis added).
-Obscene antigovernment- speech, then, is a contradiction
in terms: If expression is antigovernment, it does not -lac[k]
serious . . . political . . . value- and cannot be obscene.
The Court attempts to bolster its argument by likening
its novel analysis to that applied to restrictions on the time,
place, or manner of expression or on expressive conduct. It
is true that loud speech in favor of the Republican Party
can be regulated because it is loud, but not because it is
pro-Republican; and it is true that the public burning of the
American flag can be regulated because it involves public
burning and not because it involves the flag. But these
analogies are inapposite. In each of these examples, the
two elements (e.g., loudness and pro-Republican orienta-
tion) can coexist; in the case of -obscene antigovernment-
speech, however, the presence of one element (-obscenity-)
by definition means the absence of the other. To my mind,
it is unwise and unsound to craft a new doctrine based on
such highly speculative hypotheticals.
I am, however, even more troubled by the second step of
the Court's analysis-namely, its conclusion that the St.
Paul ordinance is an unconstitutional content-based
regulation of speech. Drawing on broadly worded dicta, the
Court establishes a near-absolute ban on content-based
regulations of expression and holds that the First Amend-
ment prohibits the regulation of fighting words by subject
matter. Thus, while the Court rejects the -all-or-nothing-at-
all- nature of the categorical approach, ante, at 6, it
promptly embraces an absolutism of its own: within a
particular -proscribable- category of expression, the Court
holds, a government must either proscribe all speech or no
speech at all. This aspect of the Court's ruling fundamen-
tally misunderstands the role and constitutional status of
content-based regulations on speech, conflicts with the very
nature of First Amendment jurisprudence, and disrupts
well-settled principles of First Amendment law.
Although the Court has, on occasion, declared that
content-based regulations of speech are -never permitted,-
Police Dept. of Chicago v. Mosley, 408 U. S. 92, 99 (1972),
such claims are overstated. Indeed, in Mosley itself, the
Court indicated that Chicago's selective proscription of
nonlabor picketing was not per se unconstitutional, but
rather could be upheld if the City demonstrated that
nonlabor picketing was -clearly more disruptive than [labor]
picketing.- Id., at 100. Contrary to the broad dicta in
Mosley and elsewhere, our decisions demonstrate that
content-based distinctions, far from being presumptively
invalid, are an inevitable and indispensable aspect of a
coherent understanding of the First Amendment.
This is true at every level of First Amendment law. In
broadest terms, our entire First Amendment jurisprudence
creates a regime based on the content of speech. The scope
of the First Amendment is determined by the content of
expressive activity: Although the First Amendment broadly
protects -speech,- it does not protect the right to -fix prices,
breach contracts, make false warranties, place bets with
bookies, threaten, [or] extort.- Schauer, Categories and the
First Amendment: A Play in Three Acts, 34 Vand. L. Rev.
265, 270 (1981). Whether an agreement among competitors
is a violation of the Sherman Act or protected activity under
the Noerr-Pennington doctrine hinges upon the content of
the agreement. Similarly, -the line between permissible
advocacy and impermissible incitation to crime or violence
depends, not merely on the setting in which the speech
occurs, but also on exactly what the speaker had to say.-
Young v. American Mini Theatres, Inc., 427 U. S. 50, 66
(1976) (plurality opinion); see also Musser v. Utah, 333
U. S. 95, 100-103 (1948) (Rutledge, J., dissenting).
Likewise, whether speech falls within one of the catego-
ries of -unprotected- or -proscribable- expression is deter-
mined, in part, by its content. Whether a magazine is
obscene, a gesture a fighting word, or a photograph child
pornography is determined, in part, by its content. Even
within categories of protected expression, the First Amend-
ment status of speech is fixed by its content. New York
Times Co. v. Sullivan, 376 U. S. 254 (1964), and Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749
(1985), establish that the level of protection given to speech
depends upon its subject matter: speech about public
officials or matters of public concern receives greater
protection than speech about other topics. It can, therefore,
scarcely be said that the regulation of expressive activity
cannot be predicated on its content: much of our First
Amendment jurisprudence is premised on the assumption
that content makes a difference.
Consistent with this general premise, we have frequently
upheld content-based regulations of speech. For example,
in Young v. American Mini Theatres, the Court upheld
zoning ordinances that regulated movie theaters based on
the content of the films shown. In FCC v. Pacifica Founda-
tion, 438 U. S. 726 (1978) (plurality opinion), we upheld a
restriction on the broadcast of specific indecent words. In
Lehman v. City of Shaker Heights, 418 U. S. 298 (1974)
(plurality opinion), we upheld a city law that permitted
commercial advertising, but prohibited political advertising,
on city buses. In Broadrick v. Oklahoma, 413 U. S. 601
(1973), we upheld a state law that restricted the speech of
state employees, but only as concerned partisan political
matters. We have long recognized the power of the Federal
Trade Commission to regulate misleading advertising and
labeling, see, e.g., Jacob Siegel Co. v. FTC, 327 U. S. 608
(1946), and the National Labor Relations Board's power to
regulate an employer's election-related speech on the basis
of its content. See, e.g., NLRB v. Gissel Packing Co., 395
U. S. 575, 616-618 (1969). It is also beyond question that
the Government may choose to limit advertisements for
cigarettes, see 15 U. S. C. 1331-1340, but not for cigars;
choose to regulate airline advertising, see Morales v. Trans
World Airlines, 504 U. S. ___ (1992), but not bus advertis-
ing; or choose to monitor solicitation by lawyers, see
Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), but
not by doctors.
All of these cases involved the selective regulation of
speech based on content-precisely the sort of regulation
the Court invalidates today. Such selective regulations are
unavoidably content based, but they are not, in my opinion,
-presumptively invalid.- As these many decisions and
examples demonstrate, the prohibition on content-based
regulations is not nearly as total as the Mosley dictum
suggests.
Disregarding this vast body of case law, the Court today
goes beyond even the overstatement in Mosley and applies
the prohibition on content-based regulation to speech that
the Court had until today considered wholly -unprotected-
by the First Amendment-namely, fighting words. This
new absolutism in the prohibition of content-based regula-
tions severely contorts the fabric of settled First Amend-
ment law.
Our First Amendment decisions have created a rough
hierarchy in the constitutional protection of speech. Core
political speech occupies the highest, most protected
position; commercial speech and nonobscene, sexually
explicit speech are regarded as a sort of second-class
expression; obscenity and fighting words receive the least
protection of all. Assuming that the Court is correct that
this last class of speech is not wholly -unprotected,- it
certainly does not follow that fighting words and obscenity
receive the same sort of protection afforded core political
speech. Yet in ruling that proscribable speech cannot be
regulated based on subject matter, the Court does just
that. Perversely, this gives fighting words greater protec-
tion than is afforded commercial speech. If Congress can
prohibit false advertising directed at airline passengers
without also prohibiting false advertising directed at bus
passengers and if a city can prohibit political advertise-
ments in its buses while allowing other advertisements, it
is ironic to hold that a city cannot regulate fighting words
based on -race, color, creed, religion or gender- while
leaving unregulated fighting words based on -union
membership or homosexuality.- Ante, at 13. The Court
today turns First Amendment law on its head: Communi-
cation that was once entirely unprotected (and that still can
be wholly proscribed) is now entitled to greater protection
than commercial speech-and possibly greater protection
than core political speech. See Burson v. Freeman, 504
U. S. ___, ___ (1992).
Perhaps because the Court recognizes these perversities,
it quickly offers some ad hoc limitations on its newly
extended prohibition on content-based regulations. First,
the Court states that a content-based regulation is valid
-[w]hen the content discrimination is based upon the very
reason the entire class of speech. . .is proscribable.- In a
pivotal passage, the Court writes
-the Federal Government can criminalize only those
physical threats that are directed against the Presi-
dent, see 18 U. S. C. 871-since the reasons why
threats of violence are outside the First Amendment
(protecting individuals from the fear of violence, from
the disruption that fear engenders, and from the
possibility that the threatened violence will occur) have
special force when applied to the. . .President.- Ante,
at 10.
As I understand this opaque passage, Congress may choose
from the set of unprotected speech (all threats) to proscribe
only a subset (threats against the President) because those
threats are particularly likely to cause -fear of violence,-
-disruption,- and actual -violence.-
Precisely this same reasoning, however, compels the
conclusion that St. Paul's ordinance is constitutional. Just
as Congress may determine that threats against the
President entail more severe consequences than other
threats, so St. Paul's City Council may determine that
threats based on the target's race, religion, or gender cause
more severe harm to both the target and to society than
other threats. This latter judgment-that harms caused by
racial, religious, and gender-based invective are qualitative-
ly different from that caused by other fighting
words-seems to me eminently reasonable and realistic.
Next, the Court recognizes that a State may regulate
advertising in one industry but not another because -the
risk of fraud (one of the characteristics that justifies
depriving [commercial speech] of full First Amendment
protection . . .)- in the regulated industry is -greater- than
in other industries. Ante, at 10. Again, the same reasoning
demonstrates the constitutionality of St. Paul's ordinance.
-[O]ne of the characteristics that justifies- the constitutional
status of fighting words is that such words -by their very
utterance inflict injury or tend to incite an immediate
breach of the peace.- Chaplinsky, 315 U. S., at 572.
Certainly a legislature that may determine that the risk of
fraud is greater in the legal trade than in the medical trade
may determine that the risk of injury or breach of peace
created by race-based threats is greater than that created
by other threats.
Similarly, it is impossible to reconcile the Court's analysis
of the St. Paul ordinance with its recognition that ``a
prohibition of fighting words that are directed at certain
persons or groups . . . would be facially valid.'' Ante, at 13
(emphasis deleted). A selective proscription of unprotected
expression designed to protect ``certain persons or groups''
(for example, a law proscribing threats directed at the
elderly) would be constitutional if it were based on a
legitimate determination that the harm created by the
regulated expression differs from that created by the
unregulated expression (that is, if the elderly are more
severely injured by threats than are the nonelderly). Such
selective protection is no different from a law prohibiting
minors (and only minors) from obtaining obscene publica-
tions. See Ginsberg v. New York, 390 U. S. 629 (1968). St.
Paul has determined-reasonably in my judgment-that
fighting-word injuries ``based on race, color, creed, religion
or gender'' are qualitatively different and more severe than
fighting-word injuries based on other characteristics.
Whether the selective proscription of proscribable speech is
defined by the protected target (-certain persons or groups-)
or the basis of the harm (injuries -based on race, color,
creed, religion or gender-) makes no constitutional differ-
ence: what matters is whether the legislature's selection is
based on a legitimate, neutral, and reasonable distinction.
In sum, the central premise of the Court's ruling-that
-[c]ontent-based regulations are presumptively inval-
id--has simplistic appeal, but lacks support in our First
Amendment jurisprudence. To make matters worse, the
Court today extends this overstated claim to reach catego-
ries of hitherto unprotected speech and, in doing so, wreaks
havoc in an area of settled law. Finally, although the Court
recognizes exceptions to its new principle, those exceptions
undermine its very conclusion that the St. Paul ordinance
is unconstitutional. Stated directly, the majority's position
cannot withstand scrutiny.
II
Although I agree with much of Justice White's analysis,
I do not join Part I-A of his opinion because I have reserva-
tions about the -categorical approach- to the First Amend-
ment. These concerns, which I have noted on other
occasions, see, e.g., New York v. Ferber, 458 U. S. 747, 778
(1982) (Stevens, J., concurring in judgment), lead me to
find Justice White's response to the Court's analysis
unsatisfying.
Admittedly, the categorical approach to the First Amend-
ment has some appeal: either expression is protected or it
is not-the categories create safe harbors for governments
and speakers alike. But this approach sacrifices subtlety
for clarity and is, I am convinced, ultimately unsound. As
an initial matter, the concept of -categories- fits poorly with
the complex reality of expression. Few dividing lines in
First Amendment law are straight and unwavering, and
efforts at categorization inevitably give rise only to fuzzy
boundaries. Our definitions of ``obscenity,'' see, e.g., Marks
v. United States, 430 U. S. 188, 198 (1977) (Stevens, J.,
concurring in part and dissenting in part), and ``public
forum,'' see, e.g., United States Postal Service v. Council of
Greenburgh Civic Assns., 453 U. S. 114, 126-131 (1981); id.,
at 136-140 (Brennan, J., concurring in judgment); id., at
147-151 (Marshall, J., dissenting); 152-154 (Stevens, J.,
dissenting) (all debating the definition of -public forum-),
illustrate this all too well. The quest for doctrinal certainty
through the definition of categories and subcategories is, in
my opinion, destined to fail.
Moreover, the categorical approach does not take serious-
ly the importance of context. The meaning of any expres-
sion and the legitimacy of its regulation can only be
determined in context. Whether, for example, a picture or
a sentence is obscene cannot be judged in the abstract, but
rather only in the context of its setting, its use, and its
audience. Similarly, although legislatures may freely
regulate most nonobscene child pornography, such pornog-
raphy that is part of -a serious work of art, a documentary
on behavioral problems, or a medical or psychiatric teaching
device,- may be entitled to constitutional protection; the
``question whether a specific act of communication is
protected by the First Amendment always requires some
consideration of both its content and its context.'' Ferber,
458 U. S. at 778 (Stevens, J., concurring in judgment); see
also Smith v. United States, 431 U. S. 291, 311-321 (1977)
(Stevens, J., dissenting). The categorical approach sweeps
too broadly when it declares that all such expression is
beyond the protection of the First Amendment.
Perhaps sensing the limits of such an all-or-nothing
approach, the Court has applied its analysis less categori-
cally than its doctrinal statements suggest. The Court has
recognized intermediate categories of speech (for example,
for indecent nonobscene speech and commercial speech) and
geographic categories of speech (public fora, limited public
fora, nonpublic fora) entitled to varying levels of protection.
The Court has also stringently delimited the categories of
unprotected speech. While we once declared that -[l]ibelous
utterances [are] not . . . within the area of constitutionally
protected speech, Beauharnais v. Illinois, 343 U. S. 250, 266
(1952), our rulings in New York Times Co. v. Sullivan, 376
U. S. 253 (1964); Gertz v. Robert Welch, Inc., 418 U. S. 323
(1974), and Dun & Bradstreet, Inc. v. Greenmoss Builders,
Inc., 472 U. S. 749 (1985), have substantially qualified this
broad claim. Similarly, we have consistently construed the
-fighting words- exception set forth in Chaplinsky narrowly.
See, e.g., Houston v. Hill, 482 U. S. 451 (1987); Lewis v.
City of New Orleans, 415 U. S. 130 (1974); Cohen v.
California, 403 U. S. 15 (1971). In the case of commercial
speech, our ruling that -the Constitution imposes no . . .
restraint on government [regulation] as respects purely
commercial advertising,- Valentine v. Chrestensen, 316 U. S.
52, 54 (1942), was expressly repudiated in Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425
U. S. 748 (1976). In short, the history of the categorical
approach is largely the history of narrowing the categories
of unprotected speech.
This evolution, I believe, indicates that the categorical
approach is unworkable and the quest for absolute catego-
ries of -protected- and -unprotected- speech ultimately
futile. My analysis of the faults and limits of this approach
persuades me that the categorical approach presented in
Part I-A of Justice White's opinion is not an adequate
response to the novel -underbreadth- analysis the Court
sets forth today.
III
As the foregoing suggests, I disagree with both the
Court's and part of Justice White's analysis of the consti-
tutionality St. Paul ordinance. Unlike the Court, I do not
believe that all content-based regulations are equally infirm
and presumptively invalid; unlike Justice White, I do not
believe that fighting words are wholly unprotected by the
First Amendment. To the contrary, I believe our decisions
establish a more complex and subtle analysis, one that
considers the content and context of the regulated speech,
and the nature and scope of the restriction on speech.
Applying this analysis and assuming arguendo (as the
Court does) that the St. Paul ordinance is not overbroad, I
conclude that such a selective, subject-matter regulation on
proscribable speech is constitutional.
Not all content-based regulations are alike; our decisions
clearly recognize that some content-based restrictions raise
more constitutional questions than others. Although the
Court's analysis of content-based regulations cannot be
reduced to a simple formula, we have considered a number
of factors in determining the validity of such regulations.
First, as suggested above, the scope of protection provided
expressive activity depends in part upon its content and
character. We have long recognized that when government
regulates political speech or -the expression of editorial
opinion on matters of public importance,- FCC v. League of
Women Voters of California, 468 U. S. 364, 375-376 (1984),
-First Amendment protectio[n] is `at its zenith.'- Meyer v.
Grant, 486 U. S. 414, 425 (1988). In comparison, we have
recognized that -commercial speech receives a limited form
of First Amendment protection,- Posadas de Puerto Rico
Associates v. Tourism Co. of Puerto Rico, 478 U. S. 328, 340
(1986), and that -society's interest in protecting [sexually
explicit films] is of a wholly different, and lesser magnitude
than [its] interest in untrammeled political debate.- Young
v. American Mini Theatres, 427 U. S., at 70; see also FCC
v. Pacifica Foundation, 438 U. S. 726 (1978). The character
of expressive activity also weighs in our consideration of its
constitutional status. As we have frequently noted, -[t]he
government generally has a freer hand in restricting
expressive conduct than it has in restricting the written or
spoken word.- Texas v. Johnson, 491 U. S. 397, 406 (1989);
see also United States v. O'Brien, 391 U. S. 367 (1968).
The protection afforded expression turns as well on the
context of the regulated speech. We have noted, for
example, that -[a]ny assessment of the precise scope of
employer expression, of course, must be made in the context
of its labor relations setting . . . [and] must take into
account the economic dependence of the employees on their
employers.- NLRB v. Gissel Packing Co., 395 U. S., at 617.
Similarly, the distinctive character of a university environ-
ment, see Widmar v. Vincent, 454 U. S. 263, 277-280 (1981)
(Stevens, J., concurring in judgment), or a secondary school
environment, see Hazelwood School Dist. v. Kuhlmeier, 484
U. S. 260 (1988), influences our First Amendment analysis.
The same is true of the presence of a -`captive audience[,
one] there as a matter of necessity, not of choice.'- Lehman
v. City of Shaker Heights, 418 U. S., at 302 (citation
omitted). Perhaps the most familiar embodiment of the
relevance of context is our -fora- jurisprudence, differentiat-
ing the levels of protection afforded speech in different
locations.
The nature of a contested restriction of speech also
informs our evaluation of its constitutionality. Thus, for
example, -[a]ny system of prior restraints of expression
comes to this Court bearing a heavy presumption against
its constitutional validity.- Bantam Books, Inc. v. Sullivan,
372 U. S. 58, 70 (1963). More particularly to the matter of
content-based regulations, we have implicitly distinguished
between restrictions on expression based on subject matter
and restrictions based on viewpoint, indicating that the
latter are particularly pernicious. -If there is a bedrock
principle underlying the First Amendment, it is that the
Government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or
disagreeable.- Texas v. Johnson, 491 U. S., at 414. -View-
point discrimination is censorship in its purest form,- Perry
Education Assn. v. Perry Local Educators' Assn., 460 U. S.
37, 62 (1983) (Brennan, J., dissenting), and requires
particular scrutiny, in part because such regulation often
indicates a legislative effort to skew public debate on an
issue. See, e.g., Schacht v. United States, 398 U. S. 58, 63
(1970). -Especially where . . . the legislature's suppression
of speech suggests an attempt to give one side of a debat-
able public question an advantage in expressing its views
to the people, the First Amendment is plainly offended.-
First National Bank of Boston v. Bellotti, 435 U. S. 765,
785-786 (1978). Thus, although a regulation that on its
face regulates speech by subject matter may in some
instances effectively suppress particular viewpoints, see,
e.g., Consolidated Edison Co. of N.Y. v. Public Service
Comm'n of N.Y., 447 U. S. 530, 546-547 (1980) (Stevens,
J., concurring in judgment), in general, viewpoint-based
restrictions on expression require greater scrutiny than
subject-matter based restrictions.
Finally, in considering the validity of content-based
regulations we have also looked more broadly at the scope
of the restrictions. For example, in Young v. American Mini
Theatres, 427 U. S., at 71, we found significant the fact that
-what [was] ultimately at stake [was] nothing more than a
limitation on the place where adult films may be exhibited.-
Similarly, in FCC v. Pacifica Foundation, the Court
emphasized two dimensions of the limited scope of the FCC
ruling. First, the ruling concerned only broadcast material
which presents particular problems because it -confronts
the citizen . . . in the privacy of the home-; second, the
ruling was not a complete ban on the use of selected
offensive words, but rather merely a limitation on the times
such speech could be broadcast. 438 U. S., at 748-750.
All of these factors play some role in our evaluation of
content-based regulations on expression. Such a multi-
faceted analysis cannot be conflated into two dimensions.
Whatever the allure of absolute doctrines, it is just too
simple to declare expression -protected- or -unprotected- or
to proclaim a regulation -content-based- or -content-
neutral.-
In applying this analysis to the St. Paul ordinance, I
assume arguendo-as the Court does-that the ordinance
regulates only fighting words and therefore is not over-
broad. Looking to the content and character of the regulat-
ed activity, two things are clear. First, by hypothesis the
ordinance bars only low-value speech, namely, fighting
words. By definition such expression constitutes -no
essential part of any exposition of ideas, and [is] of such
slight social value as a step to truth that any benefit that
may be derived from [it] is clearly outweighed by the social
interest in order and morality.'' Chaplinsky, 315 U. S., at
572. Second, the ordinance regulates -expressive conduct
[rather] than . . . the written or spoken word.- Texas v.
Johnson, 491 U. S., at 406.
Looking to the context of the regulated activity, it is
again significant that the statute (by hypothesis) regulates
only fighting words. Whether words are fighting words is
determined in part by their context. Fighting words are not
words that merely cause offense; fighting words must be
directed at individuals so as to -by their very utterance
inflict injury.- By hypothesis, then, the St. Paul ordinance
restricts speech in confrontational and potentially violent
situations. The case at hand is illustrative. The cross-
burning in this case-directed as it was to a single African-
American family trapped in their home-was nothing more
than a crude form of physical intimidation. That this cross-
burning sends a message of racial hostility does not
automatically endow it with complete constitutional
protection.
Significantly, the St. Paul ordinance regulates speech not
on the basis of its subject matter or the viewpoint ex-
pressed, but rather on the basis of the harm the speech
causes. In this regard, the Court fundamentally misreads
the St. Paul ordinance. The Court describes the St. Paul
ordinance as regulating expression ``addressed to one of
[several] specified disfavored topics,'' ante, at 13 (emphasis
supplied), as policing ``disfavored subjects,'' ibid. (emphasis
supplied), and as ``prohibit[ing] . . . speech solely on the
basis of the subjects the speech addresses.'' Ante, at 3
(emphasis supplied). Contrary to the Court's suggestion,
the ordinance regulates only a subcategory of expression
that causes injuries based on ``race, color, creed, religion or
gender,'' not a subcategory that involves discussions that
concern those characteristics. The ordinance, as construed
by the Court, criminalizes expression that ``one knows . . .
[by its very utterance inflicts injury on] others on the basis
of race, color, creed, religion or gender.'' In this regard, the
ordinance resembles the child pornography law at issue in
Ferber, which in effect singled out child pornography
because those publications caused far greater harms than
pornography involving adults.
Moreover, even if the St. Paul ordinance did regulate
fighting words based on its subject matter, such a regula-
tion would, in my opinion, be constitutional. As noted
above, subject-matter based regulations on commercial
speech are widespread and largely unproblematic. As we
have long recognized, subject-matter regulations generally
do not raise the same concerns of government censorship
and the distortion of public discourse presented by view-
point regulations. Thus, in upholding subject-matter
regulations we have carefully noted that viewpoint-based
discrimination was not implicated. See Young v. American
Mini Theatres, 427 U. S., at 67 (emphasizing -the need for
absolute neutrality by the government,- and observing that
the contested statute was not animated by -hostility for the
point of view- of the theatres); FCC v. Pacifica Foundation,
438 U. S., at 745-746 (stressing that -government must
remain neutral in the marketplace of ideas-); see also FCC
v. League of Women's Voters of California, 468 U. S., at
412-417 (Stevens, J., dissenting); Metromedia, Inc. v. City
of San Diego, 453 U. S. 490, 554-555 (1981) (Stevens, J.,
dissenting in part). Indeed, some subject-matter restric-
tions are a functional necessity in contemporary gover-
nance: -The First Amendment does not require States to
regulate for problems that do not exist.- Burson v. Free-
man, 504 U. S. ___, ___ (1992) (slip op., at 16).
Contrary to the suggestion of the majority, the St. Paul
ordinance does not regulate expression based on viewpoint.
The Court contends that the ordinance requires proponents
of racial intolerance to -follow the Marquis of Queensbury
Rules- while allowing advocates of racial tolerance to -fight
freestyle.- The law does no such thing.
The Court writes:
-One could hold up a sign saying, for example, that all
`anti-Catholic bigots' are misbegotten; but not that all
`papists' are, for that would insult and provoke violence
`on the basis of religion.'- Ante, at 13.
This may be true, but it hardly proves the Court's point.
The Court's reasoning is asymmetrical. The response to a
sign saying that -all [religious] bigots are misbegotten- is a
sign saying that -all advocates of religious tolerance are
=> this is bullshit. otherwise, the dissents are careful.
misbegotten.- Assuming such signs could be fighting words
(which seems to me extremely unlikely), neither sign would
be banned by the ordinance for the attacks were not -based
on . . . religion- but rather on one's beliefs about tolerance.
Conversely (and again assuming such signs are fighting
words), just as the ordinance would prohibit a Muslim from
hoisting a sign claiming that all Catholics were misbegot-
ten, so the ordinance would bar a Catholic from hoisting a
similar sign attacking Muslims.
The St. Paul ordinance is evenhanded. In a battle
between advocates of tolerance and advocates of intolerance,
the ordinance does not prevent either side from hurling
fighting words at the other on the basis of their conflicting
ideas, but it does bar both sides from hurling such words on
the basis of the target's -race, color, creed, religion or
gender.- To extend the Court's pugilistic metaphor, the St.
Paul ordinance simply bans punches -below the belt--by
either party. It does not, therefore, favor one side of any
debate.
Finally, it is noteworthy that the St. Paul ordinance is, as
construed by the Court today, quite narrow. The St. Paul
ordinance does not ban all -hate speech,- nor does it ban,
say, all cross-burnings or all swastika displays. Rather it
only bans a subcategory of the already narrow category of
fighting words. Such a limited ordinance leaves open and
protected a vast range of expression on the subjects of
racial, religious, and gender equality. As construed by the
Court today, the ordinance certainly does not -`raise the
specter that the Government may effectively drive certain
ideas or viewpoints from the marketplace.'- Ante, at 9.
Petitioner is free to burn a cross to announce a rally or to
express his views about racial supremacy, he may do so on
private property or public land, at day or at night, so long
as the burning is not so threatening and so directed at an
individual as to -by its very [execution] inflict injury.- Such
a limited proscription scarcely offends the First Amend-
ment.
In sum, the St. Paul ordinance (as construed by the
Court) regulates expressive activity that is wholly pro-
scribable and does so not on the basis of viewpoint, but
rather in recognition of the different harms caused by such
activity. Taken together, these several considerations
persuade me that the St. Paul ordinance is not an unconsti-
tutional content-based regulation of speech. Thus, were the
ordinance not overbroad, I would vote to uphold it.